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Sunday, March 11, 2012

Bell, via Kagan, on Critical Race Theory: The Constitution Is the Problem

In November 1985, the Harvard Law Review published an article by Derrick Bell that was a "classic" in the development of Critical Race Theory. The article was edited by then-student Elena Kagan, and was cited by Prof. Charles Ogletree in support of her nomination to the U.S. Supreme Court by President Barack Obama in 2010. The article makes clear that Critical Race Theory sees the U.S. Constitution as a form of "original sin"--a view later embraced by Obama as a state legislator, and reflected in his actions and appointments. The following is an excerpt from the non-fiction portion of the article; much of what follows is a fictional story that Bell intended as a parable of racial "fantasy." (99 Harv. L. Rev. 4)

At the nation's beginning, the framers saw more clearly than is perhaps possible in our more enlightened and infinitely more complex time the essential need to accept what has become the American contradiction.  The framers made a conscious, though unspoken, sacrifice of the rights of some in the belief that this forfeiture was necessary to secure the rights of others in a society embracing, as its fundamental principle, the equality of all.  And thus the framers, while speaking through the Constitution in an unequivocal voice, at once promised freedom for whites and condemned blacks to slavery....

The Constitution has survived for two centuries and, despite earnest efforts by committed people, the contradiction remains, shielded and nurtured through the years by myth. This contradiction is the root reason for the inability of black people to gain legitimacy -- that is, why they are unable to be taken seriously when they are serious and why they retain a subordinate status as a group that even impressive proofs of individual competence cannot overcome. Contradiction, shrouded by myth, remains a significant factor in blacks' failure to obtain meaningful relief against historic racial injustice.

The myths that today and throughout history have nurtured the original constitutional contradiction and thus guided racial policy are manifold, operating like dreams below the level of language and conscious thought.  Much of what is called the law of civil rights -- an inexact euphemism for racial law -- has a mythological or fairy-tale quality that is based, like the early fairy tales, less on visions of gaiety and light than on an ever-present threat of disaster. We are as likely to deny as to concede these myths, and we may well deny some and admit others. They are not single stories or strands.  Rather, they operate in a rich texture that constantly changes, concealing content while elaborating their misleading meanings.

Read the full article

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